The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
AMENDED ORDER PRELIMINARILY APPROVING SETTLEMENT, APPOINTING CLASS CERTIFYING SETTLEMENT CLASS, REPRESENTATIVE AND LEAD COUNSEL, AND PROVIDING FOR NOTICE [Doc. No. 310]
Having reached settlement of the instant action (the "Litigation"), Plaintiffs now seek preliminary approval of the settlement pursuant to Federal Rule of Civil Procedure 23(e), certification of a settlement class, appointment of class representatives and lead counsel, and provisions for class notice. Plaintiffs' motion includes an executed settlement agreement, which they refer to as the Stipulation of Settlement dated May 15, 2012 (the "Stipulation"), which, together with the exhibits annexed thereto, sets forth the terms and conditions for a proposed settlement of the Litigation.*fn1 [Exh. A to Motion for Preliminary Approval, Doc. No. 310-2.] The Court GRANTS Plaintiffs' motion as set forth below.
1. The Court preliminarily APPROVES the Stipulation and the settlement set forth therein, subject to further consideration at the Final Approval Hearing described below.
2. The Court certifies a Class, for settlement purposes only, defined as: "all Persons (other than those Persons who timely and validly request exclusion from the Class) who rented a car directly from a Rental Car Defendant for pick up at a California Airport Location during the period from January 1, 2007 through November 14, 2007, and were charged and paid to the Rental Car Defendant an Airport Concession Fee, Tourism Commission Assessment Fee, or both, for that rental car as a separate line item or items on their invoices. Excluded from the Class are:
(i) rentals made pursuant to a pre-existing agreement between a business or governmental entity and a Rental Car Defendant pursuant to which the rental charge was determined; and (ii) rentals in which the customer paid a package price to a third party tour operator or on-line booking agency rather than a Rental Car Defendant. Also excluded from the Class are the Defendants, the directors, officers, subsidiaries, and affiliates of Defendants, any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest, and the legal representatives, affiliates, heirs, successors-in-interest or assigns of any such excluded person, Related Parties as well as any judges or mediators involved in the Litigation (including the Hon. Michael M. Anello, Magistrate Judge McCurine, and the Hon. Ronald Sabraw (ret.))."
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and solely for the purposes of settlement, the Court preliminarily certifies Gary Gramkow as Class Representative ("Class Representative") for the Class and appoints Hulett Harper Stewart LLP, Dennis Stewart and Sullivan Hill Lewin Rez and Engel, Donald G. Rez as Lead Counsel.
4. Solely for purposes of the settlement, the Court preliminarily finds that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the members of the Class are so numerous that joinder of all Class Members in the Litigation is impracticable; (b) there are questions of law and fact common to the Class which predominate over any individual questions; (c) the claims of the Class Representative are typical of the claims of the Class; (d) Class Representative and his counsel have fairly and adequately represented and protected the interests of all of the Class Members; and (e) a class action for purposes of settlement is superior to other available methods for the fair and efficient adjudication of the controversy, considering (i) the interests of the members of the Class in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by members of the Class; and (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum.
5. A hearing (the "Final Approval Hearing") shall be held before this Court on October 29, 2012, at 2:30 p.m., at the United States District Court for the Southern District of California, 940 Front Street, San Diego, California 92101, to determine whether the proposed settlement of the Litigation on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate to the Class and should be approved by the Court; whether a Judgment as provided in ¶ 1.17 of the Stipulation should be entered and to determine the amount of fees and expenses that should be awarded to Plaintiffs' Counsel and whether to award a service award payment to the Class Representative. The Court may adjourn the Final Approval Hearing without further notice to the Class Members.
6. The Court approves, as to form and content, the Notice of Proposed Settlement of Class Action, substantially in the forms of Exhibits A-1 through A-6, as appropriate, (individually or collectively, the "Notice"), and finds that the e-mailing or mailing and distribution of the Notice and publishing of the Notice substantially in the manner and form set forth in ¶ 7 of this Order meet the requirements of Federal Rule of Civil Procedure 23 and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
7. The firm of Kurtzman Carson Consultants ("Administrator") is hereby appointed to supervise and administer the notice procedure as well as the processing of claims as more fully set forth below:
(a) The Administrator shall make reasonable efforts to identify all Class Members based on the rental data provided by the Rental Car Defendants, as set forth in the Stipulation. No later than July 6, 2012 (the "Notice Date"), the Administrator shall cause a copy of the Notice, substantially in the forms annexed to this Order as Exhibit A-1 or A-3, to be e-mailed or mailed by standard-class mail to all Class Members who are identified;
(b) No later than July 27, 2012, the Administrator shall cause the Publication Notice annexed to this Order as Exhibit A-4 to be published in accordance with the Plan for Publication Notice annexed to this Order as Exhibit B;
(c) No later than October 22, 2012, Lead Counsel shall cause to be served on Defendants' counsel and filed with the Court proof, by affidavit or declaration, of such mailing and publishing; and,
(d) Provided the settlement is finally approved by this Court, then subsequent to such approval and no later than 60 days before the expiration of the Election Period, the Administrator shall cause the Supplemental Notice, substantially in the form annexed to this Order as ...